Whose Right Does Barnette Protect: Student or Parent?

[curtism at bellsouth.net]

The Circuit treats the statute as balancing parental rights against student free speech rights and the parental rights win--at least in a facial attack.  But this is odd.  It apparently presumes that most students who refuse to recite the pledge are violating parental wishes. Therefore to uphold parental rights, they must be required to recite the pledge.  Why presume this?  Why not presume the opposite--that it is at least ok with the parents.  Note also that the Fla. statute makes it harder to express an unpopular viewpoint--refusing the pledge.  Of course, it is far harder for the kids.  And harder for the parents to uphold what the kids want. Parents can no longer simply say--well that was the kid's decision.  Now they have to endorse it--and potentially face reprisals (discharge from employment as unpatriotic, etc) that kids don't face.  

At one time in the Warren Court era and a bit beyond, courts were supportive of student rights to free speech.  Now they are not very sympathetic.  This is part of a move to the right that practically restricts free speech under various doctrines.  For example, a 9th Circuit case upholds a rule requiring all school kids to wear school uniforms.  Fine so far, I guess.  But the uniform rule is like one in the military--no armbands, no buttons, no slogans. It silences all expression on clothing.  The Tinker court just needed a school unform rule.  Because the rule is content and viewpoint neutral, according to the 9th--no problem.  So silencing an entire channel of communication is fine.  After all students can still speak to each other, choose what they wear at home and after school and (ho, ho, ho) express themselves in the school newspaper.  I think the judges in this case were Clinton appointees but the viewpoint neutral rule they purport to apply is a Rehnquist legacy. 

Michael Curtis
-------------- Original message from Michael masinter <masinter at nova.edu>: -------------- 


> I neglected to include in my earlier post a citation to the district court 
> opinion, worth reading because of its recitation of the facts. Frazier v. 
> Alexandre, 434 F. Supp. 1350 (S.D. Fla. 2006). The Eleventh Ciruit panel 
> opinion makes no mention of what happened to Mr. Frazier, then a high 
> school junior, when he declined to recite the pledge, perhaps because any 
> mention of those facts might call into question the soundness of its 
> ruling. 
> 
> To answer Mark's first question, I think compelling a child to make a 
> personal pledge of allegiance differs from compelling her to read aloud 
> from a school book for the reasons Justice Jackson elaborated in 
> Barnettte; the pledge is an affirmation of belief and devotion, not a 
> reading exericse, and compelled affirmations of belief and devotion 
> violate personal autonomy, while compelled reading exericses do not. 
> Although the motivation for refusing to pledge in Barnette was religious, 
> the holding rested entirely on free speech grounds. The district court 
> opinion cites some of the recent cases that have applied Barnette. 
> 
> To answer Mark's second question, I think kindergartners may be treated 
> differently from high school students, but the statute draws no such 
> distinction, and absent one, seems to me to be unconstitutionally 
> overbroad. I acknowledge that my underlying supposition is that if a 
> student is sufficiently mature to embrace a set of beliefs, be they 
> religious or political, that oppose pledging allegiance, then I think the 
> child has a first amendment right to opt out of the pledge with or without 
> parental consent, and that virtually all high school students, many middle 
> school students, and some grade schoool students possess that degree of 
> maturity (Mr. Frazier had not recited or stood for the pledge since the 
> sixth grade). See Circle School v. Phillips, 381 F.3d 172 (3d Cir. 2004) 
> (holding unconstitutional a requirement that a school notify a parent when 
> a student chooses not to recite the pledge). If a parental notice 
> provision violates the first amendment, so too does a parental consent 
> requirement. A statute that violates the first amendment in its 
> application to a third of its target population would seem facially 
> overbroad under even the most rigorous standard for overbreadth. 
> 
> The likely intended consequence of the decision is to protect all other 
> teachers who, like Ms. Alexandre, discipline students who refuse to recite 
> the pledge by providing them the defense of qualified immunity, limiting 
> students like Mr. Frazier to individual as applied claims for injunctive 
> relief that may become moot before final resolution. Until yesterday, 
> that defense would not have been available. 
> 
> Michael R. Masinter 3305 College Avenue 
> Professor of Law Fort Lauderdale, FL 33314 
> Nova Southeastern University (954) 262-6151 (voice) 
> Shepard Broad Law Center (954) 262-3835 (fax) 
> masinter at nova.edu Chair, ACLU of Florida Legal Panel 
> 
> On Thu, 24 Jul 2008, Scarberry, Mark wrote: 
> 
> > I suppose we would agree ("under God" aside) that the state is entitled 
> > to encourage citizens (including children) to express allegiance to the 
> > Republic (and to its symbol, the flag). Parents of course also have some 
> > authority to require children to speak, even when the children would 
> > rather not. Could I ask Michael whether it is his view that 
> > state-supported parental coercion of children to make a personal "pledge 
> > of allegiance" violates the children's individuality or autonomy in a 
> > way that other coerced speech (e.g., reading aloud from a school book) 
> > does not? And does this apply even to kindergarten or first grade 
> > students? 
> > 
> > It does seem to me that the court's discussion of the as-applied versus 
> > facial challenge issue was not particularly clear. 
> > 
> > 
> > Mark S. Scarberry 
> > Pepperdine University School of Law 
> > 
> > 
> > -----Original Message----- 
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Michael masinter 
> > Sent: Thursday, July 24, 2008 11:39 AM 
> > Cc: conlawprof at lists.ucla.edu 
> > Subject: Whose Right Does Barnette Protect: Student or Parent? 
> > 
> > Yesterday the Eleventh Circuit reversed a district court decision that 
> > had held facially unconstitutional a Florida statute requiring all 
> > public school children to recite the pledge of allegiance unless a 
> > particular student has a written parental requested to be excused; 
> > students who object to reciting the pledge but who lack the required 
> > written parental request (like high school student plaintiff) must 
> > recite it. The court characterized the Florida law as "a parental-rights 
> > statute" that did no more than effectuate the constitutional right of a 
> > parent to control the education of her child, and therefore not 
> > controlled by Barnette or other compelled speech cases. It held 
> > instead: 
> > 
> > We conclude that the States interest in recognizing and protecting the 
> > rights of parents on some educational issues is sufficient to justify 
> > the restriction of some students' freedom of speech. 
> > 
> > 
> > http://www.ca11.uscourts.gov/opinions/ops/200614462.pdf 
> > 
> > Full disclosure -- the Florida ACLU, on whose board I sit, brought the 
> > facial challenge. 
> > 
> > I am curious to know what others think of the court's reasoning. Does 
> > Barnette's right belong only to the student's parent? The panel 
> > speculates (but does not decide) that a mature high school student might 
> > have an as applied challenge to the statute, but relying on parental 
> > notice / consent statutes relating to abortion, concluded that the 
> > burden, if any, on the students who object to mandatory recitation was 
> > insufficient to justify a facial challenge. 
> > 
> > Off list replies are welcome, as are replies to the list. 
> > 
> > Mike 
> > 
> > Michael R. Masinter 3305 College Avenue 
> > Professor of Law Fort Lauderdale, FL 33314 
> > Nova Southeastern University (954) 262-6151 (voice) 
> > Shepard Broad Law Center (954) 262-3835 (fax) 
> > masinter at nova.edu Chair, ACLU of Florida Legal 
> > Panel 
> > 
> > 
> > 
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> 
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